Susan M. Banville v. Paul A. Banville (2011)

MEMORANDUM OF DECISION

I

BACKGROUND

The plaintiff seeks a finding of contempt, alleging multiple violations of court orders.   The genesis of the orders alleged to have been violated relate back to the judgment of dissolution, entered on November 7, 2008 after a trial by the court, Caruso J., and, in many instances, have been modified by further agreements and orders of the court.

The plaintiff has filed approximately sixteen (16) motions for contempt since the beginning of this case in 2007.   The defendant has been found in contempt previously and has been ordered to pay substantial attorneys fees.   Banville v. Banville, Superior Court, judicial district of Hartford at Hartford, Docket No. FA 07 4028486 (May 26, 2010, Fischer, J.).   A capias has been issued for his civil arrest on two occasions, one of which was vacated and the second of which was returned, for his failure to appear at hearings.   Further, he has been determined to lack credibility in two separate, written decisions.  Id., Banville v. Banville, Superior Court, judicial district of Hartford at Hartford, Docket No. FA 07 4028486 (November 7, 2008, Caruso, J.).   Since the return of the second capias on October 7, 2010, the plaintiff has been represented by legal counsel and has appeared for all court proceedings.

This case has involved persistent conflict and, in prior proceedings, the parties have been ordered to communicate only in writing.   Generally, the plaintiff's allegations of contempt involve the defendant's failure to pay court ordered obligations in a timely manner for the ongoing college expenses of their two adult sons.   These claims include medical insurance premiums, tuition, room, board and college expenses.   Other claims relate to the defendant's precarious economic and personal life, including delayed filing of taxes, verification of real estate losses, proof of income and expenses, life insurance, as well as the status of his residence and employment.

There have been several hearings on the plaintiff's most recent allegations of contempt, beginning on October 7, 8 and 29, 2010.   Remedial orders were issued at the conclusion of these hearings on October 29, 2010 along with further orders for discovery on May 24, 2011, followed by a series of compliance dates and status conferences, concluding with further discovery orders issued by agreement of the parties on June 9, 2011.   The plaintiff now proceeds on an amended motion for contempt, inter alia, filed with the court on March 17, 2011.   A final evidentiary hearing on these motions was held on July 19, 2011, concluding with final arguments before the court on July 27, 2011.

A. The Plaintiff's Allegations of Contempt

Although there are many ongoing allegations of contempt, the focus of the most recent court proceedings has been the plaintiff's amended motion for contempt, No. 214, filed with the court on March 17, 2011.   In the motion, the plaintiff alleges the defendant has failed to comply with numerous court orders, as follows:

1. The defendant allegedly has failed to provide proof of life insurance and beneficiary designation within sixty (60) days of the November 7, 2008 judgment and annually thereafter;

2. The defendant allegedly has not held the plaintiff harmless on mortgages;  he has failed to refinance on former marital property located on Oxford and Kenyon Streets in Hartford;

3. The defendant allegedly has not made payments for the older son's college expenses as ordered and is in contempt for payments due to the plaintiff of $2,537.49 and to the University of Hartford for $489.00 plus late fees and interest;

4. The defendant allegedly has failed to provide the plaintiff with his 2008 and 2009 tax returns which resulted in harm to the plaintiff as follows:  (a) It exposes the plaintiff to potential IRS obligations including liens and penalties in that she claimed her court ordered half of 2007 and 2008 dividends and capital gains (on the account held solely in her name), but she has no evidence that the defendant has claimed his half of the court ordered obligation;  and (b) he has not fulfilled the requirements for financial aid applications and/or requests including providing his tax returns to the college;

5. The defendant allegedly has not provided any rental income or an accounting of rental income to plaintiff's counsel;

6. The defendant allegedly has failed to provide written invoices for amounts due and written receipts for any and all payments made for the Creighton University tuition;  and

7. The defendant allegedly has failed to pay his share of health insurance and unreimbursed health expenses for the minor children as defined by the order.

B. Relief Requested

The plaintiff seeks the following relief based upon these alleged willful violations of court orders in her amended proposed orders, filed with the court on July 27, 2011:

1. The defendant should be held in contempt, based upon plaintiff's Exhibits 1 through 11 and defendant's Exhibits A, B, I, N Q and S.

2. The defendant should be ordered to pay the plaintiff $3,095.74 within one (1) week, by July 26, 2011, for sums he owes the plaintiff, based upon evidence presented in plaintiff's Exhibits 1, 4, 6, 7, 10 and 11, and defendant's Exhibits I, K and Q.

3. The defendant should furthermore be ordered to post a bond of $25,000.00 for the children's future health insurance premiums, unreimbursed medical and dental costs, college tuition and expenses and room and board costs for the child, Scott.

4. The defendant should be ordered to pay all of Christopher's college tuition, room and board, books, miscellaneous college expenses pursuant to C.G.S. § 46b–56c and unreimbursed medical and dental expenses without any contributions from the plaintiff until he has satisfied all sums due the plaintiff as aforesaid.   The plaintiff should be able to offset the amount the defendant owes for his fifty percent (50%) share of any costs she pays for Scott's tuition, room and board, college costs, health insurance premiums and unreimbursed medical and dental expenses before making any contribution to Christopher's college expenses.

5. The defendant should provide all written verification and supporting documentation of the financial aid package and final approved award for the 2010–11 school year from Creighton University, i.e. on their letterhead, as well as all invoices, and receipts for all payments made to date and for future invoices.

Each party should provide the other with copies of any college tuition bills and/or college expenses and unreimbursed healthcare expenses within seven (7) days of receipt.   The parties should exchange an accounting of all college expenses every three (3) months on all calendar quarters (January 1, April 1, July 1 and October 1) and the party who owes a balance to the other shall pay all sums due within one (1) week from the exchange.   If the bills are not submitted in this time frame, they should be deemed non-compensable.   These expenses must fall within Court orders.   In the event the defendant fails to pay his share of the expenses, the plaintiff should not be required to make any payments for Christopher until the defendant's obligation is satisfied.

6. The defendant should immediately take all steps to assure that the plaintiff is named as an authorized party at Creighton University with the appropriate departments and persons in order that the plaintiff may receive all information regarding Christopher's expenses and financial aid.   No sums should be due by the plaintiff until the defendant provides proof that the plaintiff has been named as an authorized party.   The defendant should immediately provide to the plaintiff the final approval letter outlining Christopher's financial aid package for the future academic years commencing 2011 to 2012 and thereafter.   The defendant should notify Creighton University within seven (7) days, by July 26, 2011, that the plaintiff is authorized to receive information.

7. The defendant should submit all future financial aid applications and required documentation to the universities by the original stated deadline(s) designated by the universities.

8. The defendant should provide evidence of his in-force life insurance in the amount of $250,000.00 and which shows that the children are named as equal beneficiaries, evidencing coverage for the complete period from initial judgment of November 7, 2008 until present and every January 15 thereinafter or upon the plaintiff's reasonable request.   Inasmuch as a copy of the current in-force insurance coverage has not been provided, it should be provided within seven (7) days, by July 26, 2011.

9. The defendant should pay all IRS taxes, penalties and interest due for his court ordered obligation to report half of the plaintiff's dividends and capital gains for 2007 and 2008 and amend his tax returns, where necessary.

10. The defendant should pay monthly health insurance premiums and unreimbursed medical and dental expenses and children's educational expenses in full and on time to the plaintiff and the school as ordered and within seven (7) days of any submission by the plaintiff.   The defendant should provide any request for reimbursement every thirty (30) days by the 10th of the month and if not submitted are deemed non-compensable.

11. The defendant should have a work and job search order imposed upon him and he shall report the details of his job searches weekly to the plaintiff in writing to include copies of job applications, dates when submitted, dates of interviews, date of hire/rejection, etc.

12. The defendant should provide notification to the plaintiff of a physical address where he can receive mail and subpoena service, and shall provide notification to the plaintiff via certified mail within 24 hours of any change in his physical address to which mail can be sent and service can be made.

13. The defendant should use the plaintiff's home address for all mailings to her and shall discontinue sending plaintiff's mail to her counsel.

14. The defendant should be ordered to pay counsel fees of $20,120.50 plus subpoena costs of $116.40 and judgment lien cost of $63.00.

C. The Defendant's Response and Offsets

To the allegations of contempt, generally, the defendant claims substantial compliance, albeit untimely in many instances, but not willfully so.

Essentially, the defendant claims he is owed an offset of $4,314.48, which is in excess of the plaintiff's remaining total claim of $3,095.74.   Based upon the defendant's acknowledgment of owing an even higher amount than claimed of $3,197, he seeks a credit of $1,116.90 toward an upcoming room and board payment owed to the plaintiff for their adult child, Scott Banville, living with her while attending the University of Hartford.

In addition, the defendant's other specific claims for relief are as follows:

1. There is presently due from plaintiff to defendant a net sum of $1,116.90.   This sum should be credited against the $1,800.00 due plaintiff for room and board for Scott Banville for the fall semester, 2011 and the difference of $683.10 should be paid by defendant to plaintiff on or before October 10, 2011.   Should Scott Banville not attend college in the fall, 2011 so that the $1,800.00 is not due plaintiff, then she shall pay the defendant the sum of $1,116.90 on or before October 10, 2011.

2. Defendant should pay plaintiff the sum of $223.00 per month representing his share of the children's health insurance commencing August 2011 on or before the 10th day of each month.   This should be paid separate and distinct from any offsets for other expenses between the parties.

3. Defendant should pay his one-half share of the fall tuition 2011 and spring tuition 2012 to the University of Hartford on or before October 1, 2011 and February 1, 2012 respectively, provided the defendant's share for each semester is less than $1,000.00.   Should defendant's share exceed $1,000.00 per semester, he shall be entitled to an itemized bill from the University of Hartford prior to payment.

4. Defendant should continue to pay tuition to Creighton University for Christopher Banville for fall and spring semesters and shall provide a receipt for this payment to the plaintiff.   She should pay her one-half share to defendant within thirty (30) days thereafter.   Should the plaintiff's share exceed $1,000.00 per semester, she shall be entitled to an itemized bill from Creighton University prior to payment.

5. Plaintiff should receive a credit of $147.50 representing one-half of the late fees charged by Creighton University for Spring semester unless defendant is able to have this late fee removed and appear as a credit on the Creighton University Tuition bill for either fall or spring semester with proof of credit provided to plaintiff.   If no credit appears in the fall or spring tuition bill, the plaintiff's one-half share of the spring tuition bill shall be reduced by $147.50.

6. The parties should exchange receipts for unreimbursed medical and dental expenses incurred for the children for the period 7/19/11—12/31/11 on or before January 15, 2012 with the net difference to be paid between the parties on or before January 31, 2012.   This process shall continue on a quarterly basis thereafter.

7. The parties should exchange receipts for other reasonable and necessary college expenses incurred 7/19/11—12/31/11 on or before January 15, 2012 with the net difference to be paid between the parties on or before January 31, 2012.   This process should continue on a quarterly basis thereafter.   Should there be a dispute as to what constitutes reasonable and necessary educational expenses, the parties shall submit this question to the court for ruling by post-judgment motion requesting such a ruling and itemizing the disputed expenses.

8. Each party should pay his or her own attorney fees.

II

DISCUSSION AND FINDINGS

The Supreme Court has reiterated the standard applicable to civil judgments of contempt in the case of In re Leah S., 284 Conn. 685, 935 A.2d 1021 (2007).   The court explained:  “[O]ur analysis of a judgment of contempt consists of two levels of inquiry.   First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt ․ Second, if ․ the underlying court order was sufficiently clear and unambiguous, [the trial court must then determine] ․ whether the violation was wilful or excused by a good faith dispute or misunderstanding.”  (Citations omitted.)  Id., at 693–94.

“The contempt remedy is particularly harsh ․ and may be founded solely upon some clear and express direction of the court ․ A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful.   This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt.   Whether it will preclude such a finding is ultimately within the trial court's discretion.”   (Citation omitted;  internal quotation marks omitted.)  Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).

The following court orders and facts are relevant to these proceedings:

A. Real Property

The real estate owned by the parties was divided at the time of judgment, awarding the defendant two properties:  one home located at 261 Kenyon Street in Hartford, with equity determined by the court in the amount of $246,000, as well as a multifamily home located at 39–41 Oxford Street in Hartford, with equity also determined by the court in the amount of $253,000.   Judge Caruso's order dividing the real estate between the parties includes a hold-harmless provision, as follows:  “The plaintiff shall retain all of the property titled in her name as hereinabove set forth free of any claims of the defendant.   The defendant shall retain all of the property titled in his name as hereinabove set forth free of any claims of the plaintiff.   The party receiving the property shall hold the other harmless from the payment of any liens or encumbrances thereon.”  Id.

On June 1, 2009, the court, Caruso, J., clarified the hold harmless provision and specifically provided that it was in the nature of a domestic support order.   The parties subsequently entered into a stipulation concerning the properties, ordered by the court on October 13, 2009.   The relevant portion of the stipulated order was that the defendant shall immediately refinance 39–41 Oxford Street and 261 Kenyon Street, Hartford, Connecticut to remove the plaintiff from the mortgages and, through counsel, provide the plaintiff with written reports regarding his ability to refinance the mortgages on the two properties within thirty (30) days and every thirty (30) days thereafter, until his obligations are satisfied.   The stipulation further provides that in the event the defendant does not obtain an unconditional commitment by December 1, 2009, with a closing scheduled no later than December 31, 2009, both properties shall be placed on the market for sale.   The stipulation provided that time was of the essence.

The defendant failed to refinance the mortgages on the properties and the Kenyon Street property was the subject of a foreclosure action and order of sale on July 24, 2010.   The foreclosure by sale of Kenyon Street property provided an opportunity for the defendant to realize a return of an undetermined amount of equity from the sale.   As a realtor, the defendant should be expected to understand this opportunity.   Instead, he did not allow realtors in the home because the property was not presentable, due to unfinished renovations, and his son Christopher, he claims, was incapable of vacating the premises.   The mortgagee was the only bidder and ultimately took title to the Kenyon Street property.   Therefore, no proceeds from the foreclosure were realized by the defendant.

The Oxford Street property, which had also been the subject of a foreclosure, was not sold by defendant until December 28, 2010, nearly one year after the stipulation and order to do so by the court (Caruso, J.).   This sale of this property followed a listing specifically ordered by the court (Taylor, J.) on October 29, 2010.   In addition to the mortgage(s) on the property, a judgment lien for the plaintiff's attorneys fees for contempt was paid at the closing in the approximate amount of $9,000, as was a lien for the defendant's previous counsel, compromised from approximately $100,000 to $50,000.   The defendant's net proceeds from the sale were approximately $14,000.

The October 29, 2010 order further provided that the defendant was to collect rental income from the Oxford Street property until its sale and was to provide the rental income to his attorney for transfer to the plaintiff, subject to expenses for necessary improvements agreed upon by the parties.   The defendant claims there were no rental proceeds from the Oxford Street rental property and the court has no evidence to the contrary.

Although the plaintiff claims that her credit rating has been seriously damaged by the defendant's failure to comply with these court orders over the course of several years, she has been unable to prove specific damages in this regard.   Based upon the language of the judgment, the court finds the defendant to be in compliance with the hold harmless order of the court;  namely that each “․ shall hold the other harmless from the payment of any liens or encumbrances ․” Banville v. Banville, Superior Court, judicial district of Hartford at Hartford, Docket No. FA 07 4028486 (November 7, 2008, Caruso, J.).

B. Bank of America Stock

In the judgment of dissolution, the court ordered that “[t]he parties shall each be responsible for reporting one-half of the dividends and capital gains associated with the plaintiff cashing in stock in 2007 and 2008 to maintain family expenses.”  Id. During the pendency of this action,¹ the plaintiff sold shares of Bank of America stock in the amount of $16,090.05 on April 18, 2007, for a net gain of $11,952.79.   Exhibit P.

Among other substantial assets awarded to the plaintiff at the time of judgment in 2008 was Bank of America stock valued at $16,155.   After the trial concluded on July 11, 2008, and before the judgment of dissolution was issued on November 7, 2008, the plaintiff sold additional Bank of America stock on October 1, 2008 in the amount of $7,190.05 for a net gain of $4,653.03.   In her testimony before the court, the plaintiff claimed these proceeds were used for family expenses.   With regard to the award of this stock, it is worthy to highlight the fact that the October 1, 2008 sale of Bank of America stock occurred after the evidence at the dissolution trial concluded, but prior to the issuance of the judgment.   Therefore, the October 1, 2008 sale of Bank of America stock was not in evidence and no factual determination had been made regarding the use of these proceeds toward family expenses.

Nonetheless, the defendant claims he has paid his share of taxes on the net gains from the sale of the plaintiff's Bank of America stock in 2008.   The court agrees with this assertion; ²  however, the defendant did not file his 2008 tax return until July 1, 2011.   Exhibit 8. The defendant's explanation is that he was not provided with sufficient information concerning the sale of the Bank of America stock to file his returns in a timely manner.   The court agrees and therefore the defendant cannot be held in contempt.

Although his 2008 and 2009 returns were not filed until July 1, 2011, he claims his 2007 return had long been filed before he received any information concerning the 2007 sale of Bank of America stock.   The evidence shows that the plaintiff sold shares of Bank of America stock in the amount of $16,090.05 on April 18, 2007, for a net gain of $11,952.79.   Exhibit P. This transaction occurred long before the trial and judgment, but there was no finding in the memorandum of decision regarding the amount of stock that had been sold or the amount of the proceeds used for household expenses.   The plaintiff counters that she has repeatedly provided the defendant with 1099 information on these transactions, most recently in a letter provided to his attorney on January 18, 2011.   Exhibit P. Due to the defendant's delay in paying these taxes, the plaintiff claims she is now subjected to federal tax liability and IRS penalties.   However, the only notification to the defendant in evidence, of the sale of the Bank of America Stock in 2007, is a letter dated January 18, 2011.   Exhibit P.

Based upon this evidence and other evidence presented at the hearing, the plaintiff has failed to prove willful non compliance.   Furthermore, insufficient evidence has been presented of the use of the proceeds of the sale of this stock toward household expenses.   In this context, the court finds no contempt on this claim.   Furthermore, the court will not issue a remedial order under such limited facts;  however, this is without prejudice, particularly in the event that an audit is initiated, or an enforcement action is brought, by the IRS for the failure of either party to pay these taxes in 2007.

C. Post–Majority Education

1. Educational Support Orders

The court issued an educational support order at the time of judgment, pursuant to General Statutes § 46b–56c, as follows:  “Neither party shall pay child support to the other as long as Scott continues to live with his mother and she provides him with room and board while he is attending college.   The attendant savings to the parties offsets any child support the plaintiff would normally pay for Christopher.   Both parties shall cooperate in obtaining financial aid for both children.   The parties shall equally share the cost of the post-secondary education for both children as set forth in C.G.S. Sec 46b–56c.   Payment of such costs shall be made when due to the institution or as needed by the children.”  Id.

The parties subsequently entered into a stipulation concerning educational support, ordered by the court on October 13, 2009.   The relevant portion of the stipulated order is that, in the event a child resides at home with a party, the other party shall pay $1,800.00 per semester for room and board within thirty (30) days of the commencement of the academic semester.

2. 2010 Fall Semester for Creighton University

The parties' youngest son, Christopher, now attends Creighton University in Omaha, Nebraska.   On October 29, 2010, the Court entered a further educational order, requiring the defendant immediately to pay Creighton the estimated balance owed of $1,700.00.   Assuming the actual payment of this bill by the defendant, he was credited with $850.00 of the plaintiff's share of the Creighton bill, otherwise due pursuant to the underlying educational support order, which credit was applied toward other debts owed by the defendant to the plaintiff at that time.

The balance owed to Creighton, however, was only $588.25 and not the substantially higher amount of $1,700, as claimed by the defendant at the hearing on October 29, 2010.   He claims he was unaware of the fact that the amount owed was substantially lower and has offered the plaintiff credit in the amount of $573.   Although the plaintiff accepts the offer of a payment in this amount, she steadfastly asserts in this instance, as she has in many others, that the defendant is a dissembler who has received the advantage of this $850 credit since October for other debts owed to her at that time.

The defendant maintains he was unaware of the amount paid to Creighton until recently because the bill was paid by using his business partner's credit card and that the amount charged was reflected on Mr. Stephen Dalton's card statement, which was not available to him for review and confirmation.   This response suggests a lack of minimal due diligence, required of a business relationship such as the one described between the defendant and Steven Dalton.   Therefore, to use a business partner's credit card and have no idea of the amount charged is incredible.

However, the issue of contempt is convoluted in the evolving context of this issue.   The defendant was ordered to pay a bill, estimated in the amount of $1,700, which was far in excess of what was owed.   For paying the actual bill of $588, the defendant cannot be found in contempt.   The consequence of the original order was an unjustified credit to the defendant in the amount of $850, the practical effect of which was to delay payments owed to the plaintiff, due nine months previously in October.   Based upon this set of facts, the defendant cannot be in contempt on this issue because he is not in violation of a clear court order.   Nonetheless, the court concludes that the plaintiff shall be paid, or credited as the case may be, in the amount of $573.

3. Creighton University 2011 Spring Semester

The defendant claims he is owed $1,457.52 for the spring semester tuition and room and board bill from Creighton University.   There being no evidence to the contrary, the court concludes that the defendant shall be paid, or credited as the case may be, in the amount of $1,457.52.   This amount may subject to a late fee, caused by an alleged billing error by Creighton University and will be addressed in the orders section of this decision.

4. University of Hartford Room and Board

The parties' oldest son, Scott Banville, attends the University of Hartford and resides with the plaintiff at her home in Hartford.   The parties have agreed and the court has ordered the defendant to pay the plaintiff $1,800 per semester for room and board while Scott commutes to college.   Pursuant to the court order of October 13, 2009, the room and board payment is due “within thirty (30) days of the commencement of the academic semester.”   This order is clear and specific and is not contingent upon any calculation, offset or determination of some other fact in dispute.   The payment of $1,800 for the spring semester of 2011 has not been made within thirty days of the commencement of Scott's classes and the court concludes that the defendant is in willful violation of this court order.

Although the court received no evidence identifying the commencement of classes at the University of Hartford for the 2011 spring semester and, therefore, no specific date on which the payment was due thirty days later, the court nonetheless finds the defendant is in willful violation of this court order.   In reaching this conclusion, the court finds first that the 2011 spring semester has concluded without compliance by the defendant.   Second, the court further concludes that the spring semester began within the month of January and that the payment was due to the plaintiff before March.   Finally the court concludes that the defendant had $14,000 in net revenue at his disposal on December 28, 2010 from the closing of his property on Oxford Street.   The court therefore infers from these facts that the defendant was able but unwilling to make this payment to the plaintiff.   Although the defendant may have accumulated other expenses at that time, due to his claimed indigence during the fall of 2010, the room and board payment is a court order and must take precedence.

Based upon these facts and conclusions, the court finds the plaintiff shall be paid, or credited as the case may be, in the amount of $1,800.

5. University of Hartford Tuition

The plaintiff asserts that the defendant is perpetually tardy in his payments of tuition to the University of Hartford.   The defendant responds that the University of Hartford has not been authorized in the past to communicate with him concerning billing, causing delays in his payments.   In support of this assertion, the defendant has provided a letter from the University of Hartford, acknowledging his late payment of the spring semester bill on March 21, 2011.   The letter goes on, however, to cite the Family Educational Rights and Privacy Act and the limited information authorized to be disclosed to the defendant “at this time” by his son, Scott.   See Exhibit 10.   Based upon these facts, and absent evidence to the contrary, the court finds there can be no contempt.

6. Other College Costs

The parties also claim other expenses associated with the cost of attending college, including travel expenses, computers, books and supplies.   The defendant claims expenses for books in the amount of $523.77.   He also claims $1,470.30 in expenses associated with travel to Omaha, Nebraska, including gas and hotels to bring Christopher to college in the fall and to return him home in the spring, as well as a round trip airline ticket to return home for the Christmas break.   In addition, the defendant claims expenses for a laptop computer in the amount of $572.15 and various supplies in the amount of $177.97.

The plaintiff generally acknowledges the defendant's claim for Christopher's books, but claims an offset of $164.18 for Scott's books and art supplies, required for his classroom work in lieu of books.   With regard to other expenses claimed by the defendant, the plaintiff responds that she has also purchased a laptop computer for their son Scott and has paid for many unclaimed expenses associated with his commuting to and from the University of Hartford.   Although she agrees with the payment for categories specifically identified in the educational support statute, she rejects the defendant's assertion that his other expenses for Christopher are the subject of an educational support order pursuant to General Statutes § 46b–56c.   She furthermore contends that she did not participate in the decision to enroll her son at Creighton University and should not, therefore, be responsible for the payment of extraordinary travel expenses to Nebraska.

General Statutes § 46b–56c(f) provides:  “(f) The educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by The University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents.   An educational support order may also include the cost of books and medical insurance for such child.”  (Emphasis added.)

The language of the educational support statute is not limited to specifically identified expenses.   However, based upon the history and facts of this case, the court will not credit the defendant with the expenses he claims for travel, supplies or for the laptop he purchased for his son Christopher.   This would open the door for competing and potentially unmanageable claims by the parties, who have been completely unable to negotiate their differences without the assistance of the court.

Inasmuch as there is no motion to modify the educational support order before the court at this time, the defendant's proposal that there be an allotment of $1,200 per year for travel expenses to Creighton University in Nebraska is not actionable, although the court finds the proposal to be reasonable.   However, this might very well open the door to the plaintiff's competing claim for Scott's commuting expenses during his senior year at the University of Hartford.

The court finds the defendant shall be paid, or credited as the case may be, in the net amount of $344.29 for expenses paid for books.

By way of additional background, the plaintiff has no continuing objection to her son, Christopher's, attendance at Creighton.   In addition, the defendant claims credit for securing a very generous financial aid package for his son at Creighton, saving both parties substantial college expenses.   Somewhat ironically, the defendant traveled to Omaha Nebraska to meet with financial aid officials, while subject to a capias from the court, Fischer, J., to appear at a prior contempt proceeding in this case.

D. Medical Insurance.

At the time of judgment, the court ordered that “[t]he parties shall share equally in the cost of medical insurance for the children for so long as the children are eligible for coverage, including while they are receiving post-majority support from the parties.   All unreimbursed medical expenses shall be split 50/50 by the parties.   The provisions of C.G.S. Sec. 46b–84 will apply.   The party who incurs the cost for the children shall supply documentation to the other party supporting the payment of such cost within 30 days of incurring said expense.   The other party shall then pay the sums owed within ten (10) days of receipt of such expense.”  Id.

The parties subsequently entered into a stipulation concerning the medical insurance, ordered by the court on October 13, 2009.   The relevant portion of the stipulated order was that each party shall submit any health or education expenses to the other party exclusively in writing and with receipts within thirty (30) days of receipt and payment to be made to the other party within thirty (30) days thereafter.   The stipulation further provided that the defendant shall pay his share of the health insurance premiums to the plaintiff by the 10th of each month.

The parties stipulate that payments to the plaintiff are past due for the months of May, June and July;  however, they disagree on the amount.   The defendant testified that, by his calculation, the amount is $223 per month.   The plaintiff vociferously disagrees and claims it is $235.31 per month and that the defendant has been instructed on this calculation on many occasions.   In view of the fact that the plaintiff provides and pays for the insurance policy, the court credits her with credibility on the issue of the calculation of her medical insurance premiums.

The defendant counters that he was unable to discuss insurance matters with the insurance company on behalf of Christopher because he was “blocked” from doing so by the plaintiff.   The plaintiff denies this, but also testified that the defendant is not and should not be authorized to discuss her medical insurance information.   From the evidence provided at the hearings, it appears that there was a misunderstanding between the plaintiff, the defendant and the insurance company over the scope of the defendant's authorization to receive Christopher's medical insurance information.   However, the court further concludes that this did not justify nonpayment of the court ordered payment of the insurance bill, at least in the lower amount of $223 claimed to be owed by the defendant.   Although the defendant did not link these issues to non payment, they are implied reasons for nonpayment.

The court has previously concluded that the defendant had $14,000 in his possession on December 28, 2010, but there has been no proof that he has earned substantial income in May, June or July 2011.   Although the court has inferred that the defendant had sufficient funds to pay $1,800 for Scott's room and board to the plaintiff in February, the inference that any of these funds were available in May, June and July is too attenuated to sufficiently prove it remained available to pay this expense.   However, the court finds that payment of $235.31 per month is well within the defendant's earning capacity.   Although a working wage may be below his view of his station, he has chosen to spend his time on a business venture with Mr. Dalton to the exclusion of all other work.   Based upon these facts, the court finds the defendant is in contempt of this order and that the plaintiff shall be paid, or credited as the case may be, in the amount of $705.93.

E. Life Insurance.

The court further ordered at the time of judgment that “[b]oth parties shall maintain life insurance in the amount of $250,000 naming the children as beneficiaries until the youngest child graduates from college or reaches the age of 23, whichever is the first to occur.   Both parties shall provide proof to the other of said insurance within (60) days from the date of the judgment and annually thereafter.”

For years, the defendant has failed to satisfy the requirement that he provide proof of life insurance for his adult children.   Although the defendant claims his children are insured, he has provided no conclusive evidence of life insurance in force, as required by the court order.   Even now, after days of hearings over the course of several months, the defendant has yet to satisfactorily prove the existence of a life insurance policy.   He claims he has one, yet all he provides to the plaintiff and the court is proof of an application.   He claims he has provided a binder to the court, but has not in done so in fact.   His failure to provide the plaintiff with this court ordered information has resulted, in part, in the necessity of her pursuing this action for contempt.   Therefore, the court concludes that the defendant's non compliance is willful and finds the defendant to be in contempt.

The defendant is ordered immediately to provide to the plaintiff's attorney proof of his current life insurance benefits.   The proof of life insurance benefits shall include a copy of the current policy, the named beneficiaries and the amounts of insurance applicable to each beneficiary.   He shall further provide proof that the insurance is currently paid and in force.

F. Tax Returns

On October 8, 2010, this court entered orders for the defendant to provide to the plaintiff completed copies of his 2008 and 2009 tax returns by October 26, 2010.   Failing compliance with this order, the court issued further orders on October 29, 2010 requiring the defendant, inter alia, to provide the plaintiff with his completed 2008 and 2009 tax returns within two (2) weeks of the date of the order.

The defendant claims that, until recently, he was not provided with investment account information from Edward Jones Investments, controlled by the plaintiff who was his financial advisor.   Once this information was provided to the defendant by another employee of Edward Jones Investments, he immediately filed his returns.   The court has no evidence that would contradict the defendant's factual assertions.

G. Income

The plaintiff has been unable to prove that the defendant has earned substantial income in recent years.   Instead of seeking regular employment, the defendant has been working with Mr. Steven Dalton on a start-up company, partially owned by the defendant, to inventory and sell plumbing supplies over the internet.   Mr. Dalton has loaned substantial sums to the defendant as an advance on profits from this business endeavor.   According to his financial affidavit, the defendant owes $35,000 to Mr. Dalton.   Advances on anticipated profits have included the purchase of an automobile, which the defendant claims to have lived in during short periods of homelessness.   Despite many months of work on this project, no profits from this business endeavor have been realized by the defendant, yet he devotes himself to this project to the exclusion all other vocational opportunities.   He claims his loyalty to the project is not only necessary to its success, but to maintaining good will with his business partners, to whom he is substantially indebted.

The defendant was also a licensed realtor at the time of the dissolution.   He has allowed this license to lapse, he claims, for reasons tied to the economy and a stagnant real estate market.   In October, the defendant also testified that he had insufficient funds available to pay the renewal fee for his real estate license.   Since that time, however, the defendant received the previously identified $14,000 in proceeds from the sale of the Oxford Street property and, if he had chosen to, he could have resumed employment in this field.

At the time of the dissolution in 2008, the defendant was awarded over $500,000 in assets.   He is well groomed and has the polished appearance of a successful man of means.   He wears suits, ties and dress shirts whenever he appears in court.   By appearance alone, he seems well suited to serious employment.   However, he claims to have lived, at times, without heat and hot water and occasionally in his automobile.   His assets are now completely dissipated.   The actual reason for defendant's economic collapse may be enigmatic, even in these difficult economic times;  however, he has also appeared in court to be emotionally unstable at times.   For example, while testifying during an October hearing, the defendant fell to the floor in an emotional outburst, requiring a recess of substantial duration to restore his composure.   Whether this is understood to be the result of his sudden comprehension of his dire circumstances or representative of a more systemic mental health issue is not known.

From these facts and observations, the court concludes that the defendant should be allowed to pursue his opportunity to work with Mr. Dalton, who testified in court and who has expressed confidence in the defendant's ability to succeed in their business endeavor.   The defendant has testified that he has devoted himself to this business opportunity and that he owes Mr. Dalton $35,000 in advances on profits.   Based upon these circumstances, the court will not require him to perform a traditional job search at this time.   Instead, he is required to return to court on Wednesday, November 30, 2011 to report his income and his employment status to the court.   If he is in compliance with all financial orders, his appearance may be excused.   The court nonetheless finds he has an income capacity sufficient to pay the existing court orders.

III

ORDERS

The court has issued orders on particular claims of non compliance and contempt within the body of this decision.   The following is a summary of these orders as well as remedial orders for the ongoing obligations of the parties.   Although these orders reflect the proposed orders of both parties, the financial orders are those primarily recommended by the defendant with the expectation that he will be more likely to honor orders based upon his own proposals.

1. The court finds that there is $1,801.81 due from the plaintiff to the defendant.   However, there is a larger amount presently due from defendant to plaintiff in the amount of $3,078.93.   The net sum of $1,277.12 is therefore due from the defendant to the plaintiff.

2. Defendant shall pay to plaintiff the sum of $235.31 per month representing his share of the children's health insurance commencing August 2011 on or before the 10th day of each month.   Upon an increase in the medical insurance premium, the plaintiff shall provide written verification of the premium increase and of her monthly payments to the defendant.   These payments shall be paid separate and distinct from any offsets for other expenses between the parties.

3. The defendant shall pay his one-half share of the fall tuition for 2011 and the spring tuition for 2012 to the University of Hartford on or before October 1, 2011 and February 1, 2012 respectively, provided Scott Banville is enrolled there as a full-time student.   Should defendant's share exceed $1,000.00 per semester, he shall be entitled to an itemized bill from the University of Hartford prior to payment.

4. Defendant shall continue to pay tuition to Creighton University for Christopher Banville for the fall and spring semesters, provided that he is enrolled there as a full-time student, and he shall provide a receipt for this payment to the plaintiff.   She shall pay her one-half share to defendant within thirty (30) days thereafter.   Should the plaintiff's share exceed $1,000.00 per semester, she shall be entitled to an itemized bill from Creighton University prior to payment.

5. Plaintiff shall receive a credit of $147.50 representing one-half of the late fees charged by Creighton University for the spring semester unless defendant is able to have this late fee removed and appear as a credit on the Creighton University tuition bill for either the upcoming fall or spring semester with proof of credit provided to plaintiff.   If no credit appears in the fall or spring tuition bill, the plaintiff's one-half share of the spring tuition bill shall be reduced by $147.50.

6. The parties shall exchange receipts for unreimbursed medical and dental expenses incurred for the adult children for the period of October 29, 2010 to September 1, 2011 on or before September 15, 2011, with the net difference to be paid by October 1, 2011.   This process shall continue on a quarterly basis thereafter while the adult children are the subject of an educational support order.   The next period, for example shall be for September 1, 2011 to December 1, 2011, with the exchange of receipts on December 15, 2011, with the net difference to be paid between the parties on or before January 1, 2012.   The plaintiff shall ensure that the defendant is authorized to discuss medical and dental insurance matters with the insurance company, but this authorization is limited to Christopher, so long he has additionally provided the appropriate HIPPA authorization to his parents.

7. The parties shall exchange receipts for other reasonable and necessary college expenses incurred between July 19, 2011 (the close of evidence in these proceedings) to December 1, 2011 with the exchange of receipts on December 15, 2011, with the net difference to be paid between the parties on or before January 1, 2012.   Expenses shall include only those expenses enumerated in General Statutes § 46b–56c(f), unless modified by further court order.   Fine art supplies required for classroom work, in lieu of books, are reimbursable.   This process should continue on a quarterly basis thereafter.

8. Neither party shall be obligated to pay college expenses for the institution of higher learning attended by a child if the party is not authorized to receive all information regarding college expenses for tuition, fees, room and board and any financial aid provided.   No sums shall be due until the party seeking payment or reimbursement has been authorized to receive such expense and financial aid information.

9. The defendant shall immediately provide notification to the plaintiff of a physical address where he can receive mail and service of process.   Both parties shall provide notification to the other party within 24 hours of any change in physical address to which mail can be sent and service can be made.   Notification shall be by certified mail, return receipt requested.

10. The defendant should use the plaintiff's home address for all mailings to her and shall discontinue sending plaintiff's mail to her counsel.   This order shall not apply to any mailings sent by his legal counsel, so long as the plaintiff is represented by counsel.

11. The court has determined that the net sum of $1,277.12 is due and shall be paid to the plaintiff.   In addition, and as a result of his contempt, the defendant is ordered to pay attorneys fees in equal measure in the amount of $1,277.12, for a total of $2,554.24.   Beginning on September 1, 2011, the defendant shall pay $100 per week on this sum until it is paid in full.   In the event that the defendant is in default of these payments for a period greater than thirty (30) days, the remaining arrearage shall be accelerated and due immediately and shall be subject to simple interest of 10% pursuant to General Statutes § 37–3a.

SO ORDERED.

BY THE COURT,

Mark H. Taylor

FOOTNOTES

FN1. The dissolution action was filed with the court on February 23, 2007, with a return date of March 20, 2007..  FN1. The dissolution action was filed with the court on February 23, 2007, with a return date of March 20, 2007.

FN2. In Exhibit 8, at page 1 of Schedule D, capital gains are listed for the sale of 190 shares of Bank of America stock..  FN2. In Exhibit 8, at page 1 of Schedule D, capital gains are listed for the sale of 190 shares of Bank of America stock.

Taylor, Mark H., J.